Tuesday, June 16, 2015

A Judge's Judge

By Eric Segall

The 27th floor view of the sun glistening off Lake Michigan is
simply stunning. In front of shelves lined with over forty of his own books,
Judge Richard Posner shakes my hand warmly. I am in Chicago for the week to
visit with the most influential legal scholar of the last fast fifty years who
also happens to sit on the United States Court of Appeals for the Seventh
Circuit.

Over the next five days, we will have numerous private
conversations, I will see him interact with his three law clerks, watch him ask
questions from the bench in a high profile religious freedom case, and listen
in as he participates in a video conference with a number of state and federal
judges. Much has been said and will be said about the most important judge in
America not on the Supreme Court, but the most accurate is this: he keeps
it real.

I came to know Judge Posner five years ago when I sent him a draft essay. Never having met
him, I introduced myself in the email and hoped for the best. Just a few hours
later, I received the thirty page essay back with friendly but sharp critique
and a few questions he invited me to answer. I was a bit shocked he paid such
close attention to my work.

After that initial exchange, he read a draft of my book, and we
have now twice collaborated on published projects. I am proud to call him my
friend.

The first thing I noticed last week about how he runs his chambers
is that his law clerks call him by his first name (“Dick”), and dress casually
in jeans and khakis when they are not in the courtroom. He explains that he
doesn’t see the point of formalities either in dress or title, and that
research shows businesses get more out of their employees when they are on a
first name basis with their supervisors. I don’t have the data to back it up
but I would be shocked if more than a dozen federal judges in the country allow
their clerks to call them by their first names.

This rejection of formalism for formalism’s sake is a hallmark of his
judging as well. During meetings with his law clerks on Tuesday, prior to nine
oral arguments over two days, Judge Posner demonstrated more concern about
facts, evidence, and context than cold legal rules. He wanted to know what was
in the record and what was not in the record. Both the judge and his clerks
often search the internet for information that may shed light on
the problems they have to resolve.

Some lawyers and judges criticize Posner for going outside the four
corners of the appellate case record. He
once had his clerks perform an actual experiment in a case involving how fast
special work clothes could be taken off and on by timing how fast they could
perform that feat. This out-of-court search for the facts led his friend Judge
Wood to file a strong dissent criticizing Posner’s experiment, but he believes
that prior judgments and untested intuitions play a prominent role in how
judges decide cases, so why not bring those assumptions out into the open and
test intuitions against actual data and experience? Posner simply refuses to be
limited to applying sterile legal analysis to real world questions. Unlike many
other judges, he also wants to know as much as possible about the actual likely
consequences of his decisions.

I clerked for two different federal judges, both of whom were much
more formal in style and substance than Judge Posner, so his relationship with
his clerks impressed me. He pushed them to test his theories and challenge his
intuitions. More remarkably, after Posner collects insights in these meetings
with his clerks, Judge Posner himself writes the first drafts of the opinions
which his clerks then edit and cite check. A highly unusual practice in today’s
world, but one that may explain why Judge Posner tries and often succeeds in getting out his opinions within four to six weeks of the oral argument, a much faster turnaround
compared to most other judges. His clean and succinct writing style also helps.

Posner also demonstrated his focus on the real world on Wednesday
when he served on a three-judge panel hearing Wheaton College argue that it
should not be forced to complete a government form claiming an exemption from
Obamacare’s requirement that non-church employers must provide two birth
control pills Wheaton believes lead to medically-induced abortions. The case is
full of legal doctrine and fine statutory distinctions but from the bench Judge
Posner also wanted to know why Wheaton College didn’t just identify itself as a
church, which would exempt it completely from the regulations requiring the
filing of the form. The lawyer for the college, who otherwise did a fine job,
didn’t know the answer. Judge Posner also wanted to discuss what science backed
Wheaton’s claims that the bills were abortifacients but he didn’t get any
satisfaction.

Also on Wednesday, I watched Judge Posner participate in a virtual
discussion with a number of state and federal judges who were interested in an
article he had co-written on the administrative mechanics of running a judge’s
office. When Posner expressed his frank opinion that federal trial judges
should have more law clerks than federal appellate judges who should have more
law clerks than Supreme Court Justices (the exact opposite of what is actually
the case) because trial judges have by far the busiest caseloads, a Texas
Supreme Court Justice expressed clear surprise by the suggestion, perhaps thinking that
higher status should lead to more assistance. Judge Posner’s response
demonstrated that he is not about status.

During the week, Judge Posner also had to conduct some business in
a civil trial he was presiding over. Court of appeals judges are allowed to sit
as trial judges and Posner has done so many times because he believes appellate
judges should have a good understanding of how trial judges operate. This
practice also reflects his desire to understand more fully the actual context
of his decisions. He even recently presided over a criminal case.

The Judge and I had many private conversations over the week
covering both personal and professional issues. Another aspect of his
personality that came out clearly was that, unlike many judges and academics, especially
the most prominent, he is more than willing to change his mind if presented
with new facts. Once one of our strongest national advocates for free markets,
one of his more recent books is titled “A Failure of Capitalism.” He told me
that he has modified his anti-regulatory stance a bit when thinking about the
causes of the 2008 market collapse. He also once decided that voter ID laws
were constitutional, but later publicly said that he may have been mistaken. He
was criticized by many for sharing this possible change of heart but what is
wrong with government officials admitting they might have made a mistake? His most
recent decision on the issue went the other way.

My week with Judge Posner confirmed what I have long thought--he
approaches all topics, legal and economic, with serious skepticism and seeks
out real information before reaching conclusions. To his critics, who claim he
ignores legal rules and prior cases when reaching decisions, let me assure them
that he knows the rules as well as any judge but will rely on them only when
logically necessary and the consequences require it. He also loves to chide
legal scholars for teaching their students that law is mostly about rules and
cases instead of facts and consequences. That criticism should be taken
seriously.

Judge Posner is also often accused by his critics of writing books
on non-legal subjects (sex, national security, and literature among others),
that they claim he knows little about. I can assure them that he is an intellectually curious person and thus digs deeply into these projects. No doubt he pushes the envelope at times, but his desire to learn about fields far afield from law and which affect us in non-legal ways should be applauded. Despite teaching in an Ivory Tower (the University of Chicago) for much
of his career, he despises grand theory and abstract legal analysis. It is
those qualities, along with his warmth and good humor (until a lawyer makes a
silly argument), that make him a judge’s judge.

2 comments:

There is a great deal to admire about Judge Posner. His openness to facts and arguments. His willingness to consider the consequences of judgments. His intellectual fearlessness. His fierce opposition to sophistry. And so on. But I don't want him to be a judge's judge (or a lawyer's judge). I want him to be a judge who gets it right. And his consequentialist take on the law has been a real downer, and I am hoping that, as he gains in maturity and wisdom, he will see that the singleminded focus on "facts and consequences" that he championed earlier in his career (and perhaps now too) is detrimental to the practice of judging. Rights (to liberty, to due process, to equality, to privacy, and so on) are not consistent with consequentialism (not even a consequentialism of rights, not even to rule-consequentialism). The very function and purpose of rights is to serve as barriers that stand in the way of maximizing the good. If you tell me that Judge Posner has repudiated consequentialism, then that will tell me that he really and truly "gets it". But it looks like he's still pushing the consequentialist line. It's true that in many cases consequentialism gets it right. But that is often something of an accident. The right result is achieved for the wrong reasons. And that is the wrong approach, whether to law or to morals.

Judge Posner is at his greatest when he searches for the logical fallacies and absurdities in legal arguments. A good example of this is his no-nonsense opinion in Baskin v. Bogan (on same-sex marriage), skewering the reasons offered in support of same-sex marriage bans. But even in that opinion, we have his trademark attempt to reduce matters to costs and benefits. For example, when analyzing the issue of over-and under-inclusiveness, usually taken to be relevant to the issue of whether a policy is narrowly tailored to achieving some government objective, Judge Posner writes this:

"in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes."

With all due respect, this is not the issue. The issue is whether the gains from discriminating against same-sex couples are so great that they would overcome the state's duty to ensure equal protection of the laws. If you think in terms of cost-benefit analysis, then the principle of equality no longer functions as a serious constraint on government policy, any more than X's right not to be killed stands in the way of killing X to save five others.

Judge Posner appears to think that the issue is merely "semantic". But it's not. It's a matter of substituting consequentialist for deontological reasoning, a substitution that (to use Judge Posner's favorite language) has potentially far-reaching consequences in legal adjudication.